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EXTINCTION 


VILLENAGE  AND   SLAVERY  IN  ENGLAND; 


SOMERSET'S     CASE. 


g.   ^ttper  nab   btfort   t^e   PaBsat^nsitta   pistorital   Somtg. 


Br  EMORY  WASHBURN. 


BOSTON: 

PRINTED    BY    JOHN    WILSON    &    SON. 
1864. 


W5 


SOMERSET'S     CASE, 


THE  EXTINCTION   OF   SLAVERY  IN  ENGLAND. 


It  seems  but  a  fitting  complement  to  the  articles  which 
have  been  read  from  time  to  time  before  the  Historical  So- 
ciety, upon  the  condition  of  the  slave,  and  the  extinction  of 
slavery  in  Massachusetts,  to  say  something  of  the  institution 
in  England,  and  when  and  how  it  ceased  to  exist  there.  The 
subject  in  itself  is  interesting ;  and  it  borrows,  moreover,  con- 
siderable interest  from  the  fact,  that  the  courts  of  Massachu- 
setts have  fully  kept  pace  with  those  of  England  in  holding 
that  the  common  law  of  both  was  and  is  hostile  to  the  exist- 
ence of  slavery  in  any  form. 

What,  at  first  sight,  might  seem  to  be  a  little  remarkable,  is, 
that  while  it  is,  at  a  certain  time,  assumed  that  slavery  does 
not  and  cannot  exist  in  England,  the  history  of  a  thousand 
years  shows  that  it  was  once  an  existing  institution  there ; 
and  no  statute  can  be  traced,  abolishing  or  declaring  it  unlaw- 
ful. It  is,  moreover,  a  singular  fact,  that  historians  do  not 
agree  when  or  how  it  took  its  rise,  or  when  or  how,  in  one 
form,  it  ceased  to  exist  there ;  but  that  it  did  prevail,  first  in 
the  form  of  villenage,  and  afterwards  in  that  of  modern  negro 
slavery,  is  notorious  as  an  historical  fact. 

Some  have  contended  that  villenage  grew  out  of  the  intro- 
duction of  the  feudal  system,  after  the  Conquest  in  1066, 

W 
ivi23lJi368 


4  VILLENAGE. 

whereby  the  property  in  the  lands  became  vested  in  a  few 
hands,  while  the  great  body  of  the  people  were  reduced  to  a 
condition  of  dependence,  and  even  bondage  (see  Barrington 
on  Stat.  277).  Others  insist  that  it  existed  under  the  Saxon 
government,  and  owed  its  origin  to  the  German  institutions 
which  the  Saxons  or  Jutes  brought  with  them  into  England. 
That  something  answering  to  villenage  existed  extensively 
among  the  Saxons,  seems  evident  from  the  early  writers  upon 
law  and  history ;  though  it  is  a  singular  fact,  that  writers  of 
the  highest  authority  are  found  to  this  day  advocating  each 
side  the  question,  whether  the  feudal  system  ever  prevailed 
in  England  before  the  time  of  William  the  Conqueror. 

It  is  enough  for  our  present  purpose  to  state,  what  no  one 
of  these  denies,  that,  from  the  earliest  period  of  authentic 
history,  there  did  exist  all  over  England  a  large  and  numerous 
class  of  men,  who  were  called  "  villeins,"  and  were  practically 
and  essentially  slaves.  They  were  of  two  kinds,  or  classes ; 
one,  of  farm-laborers,  working  upon  the  land  upon  which  they 
lived,  and  to  which  they  were  attached  as  appendages,  and 
were  bought  and  sold  with  the  land :  these  were  known  as 
villeins  regardant  or  appendant.  The  other  class  were  called 
villeins  in  gross;  their  relation  to  the  lord- being  of  a  personal 
character,  so  far  as  their  services  were  concerned,  and  the 
property  in  them  not  being  connected  with  the  ownership  or 
occupancy  of  any  land.  But,  in  respect  to  both  classes,  there 
was  a  property  in  a  villein  recognized  by  law,  and  one  which 
could  be  enforced  by  remedies  at  law. 

Of  the  power  of  the  owner  over  his  villein,  a  writer  of  high 
authority,  when  speaking  of  the  Saxons  in  England,  says, 
"  The  next  order  of  people  were  the  slaves,  or  villains ;  a  lower 
kind  of  ceorls,  who,  being  part  of  the  property  of  their  lords, 
were  incapable  of  any  themselves ;  "  "a  sort  of  people  who 
were  in  downright  servitude,  used  and  employed  in  the  most 
servile  works,  and  belonging,  they,  their  children,  and  effects, 
to  the  lord  of  the  soil,  like  the  rest  of  the  stock  or  cattle 


VILLENAGE.  .  6 

upon  it.  However,  the  power  of  the  lords  over  their  slaves 
was  not  absolute.  If  an  owner  beat  out  a  slave's  eye  or  a 
tooth,  the  slave  recovered  his  liberty ;  if  he  killed  him,  he 
paid  a  fine  to  the  king"  (1  Keeve's  Hist,  of  Eng.  Law,  4to 
ed.,  5). 

It  was  a  maxim  of  law  in  the  time  of  Henry  III.,  and  as 
long  as  pure  villenage  was  recognized,  that  whatever  the 
villein  acquired  belonged  to  his  master  (ib.,  102).* 

When  it  is  remembered  that  these  villeins,  or  slaves,  were 
by  far  the  most  numerous  class  of  persons  in  England,  and  that 
they  were  originally  often  of  the  same  blood  with  their  owners, 
it  is  not  surprising  that  we  early  find  them  creating  disturb- 
ance by  their  restlessness  under  a  state  of  bondage  so  base  and 
degrading.  There  is  a  statute  of  Richard  II.  which  recites 
that  they  had  been  accustomed  to  assemble  in  a  riotous  man- 
ner, endeavoring  to  withdraw  their  services  from  their  lord  ; 
and  it  then  goes  on  to  authorize  and  require  these  rebellious 
villeins  to  be  imprisoned,  without  bail,  unless  they  obtain  the 
consent  of  their  lord. 

This  law  and  the  manner  in  which  it  was  enforced  is  said  to 
have  led  to  the  famous  insurrection  of  Wat  Tyler ;  where 
more  than  sixty  thousand  villeins  and  men  of  low  degree 
assembled  on  Blackheath,  and  took  possession  of  London, 
demanding  the  abolition  of  bondage. 

And,  so  far  as  legislation  was  concerned,  it  had  uniformly 
either  ignored  the  villeins  altogether,  or  had  been  aimed  only 
at  restraining  their  outbreaks,  and  enforcing  their  obe- 
dience. 

But,  for  reasons  that  are  not  difficult  to  understand,  courts 
of  justice  have  always,  as  organized  under  the  common  law, 
with  a  few  exceptions  as  to  particular  judges,  been  found 


•  It  may  be  added,  moreover,  that,  in  some  instances,  the  rights  expressed  and 
duties  imposed  between  the  master  and  his  villein  were  too  indecent  to  be  transcribed, 
even  in  the  Latin  in  which  some  of  them  were  registered,  to  say  nothing  of  such  as 
were  only  puerile  and  ridiculous. 


6  .  VILLENAGE. 

favorable  to  personal  freedom ;  and,  in  administering  the  law 
in  the  matter  of  villenage,  the  English  courts  were  early 
found  ready  to  apply  the  most  stringent  rules  of  evidence  in 
requiring  proof  of  an  individual  being  a  villein,  whether  he 
was  suing,  as  he  might  do,  for  his  freedom,  or  his  master  was 
suing,  as  he  might  do,  to  regain  possession  of  him,  if  he  had 
escaped.  The  courts  required  the  master  to  show,  affirma- 
tively and  beyond  reasonable  doubt,  that  the  party  held  in 
bondage  was  in  fact  a  villein  :  the  legal  presumptions  being 
all  in  favor  of  his  freedom. 

Another  circumstance  which  operated  to  do  away  villenage 
was  the  gradual  recognition  of  a  title  to  the  land  which  the 
villein,  or,  it  might  be,  his  father,  had  cultivated.  The  lord 
himself  began  to  perceive  that  a  tenant,  who  feels  that  he 
has  an  interest  in  the  soil  he  cultivates,  will  be  far  more 
faithful  in  bestowing  the  requisite  labor  upon  it,  and  will 
produce  a  proportionably  larger  amount  of  crops  for  con- 
sumption, than  one  who  works  without  compensation  and 
without  hope ;  and  the  consequence  was,  that,  in  numerous 
cases,  villeins  began  to  be  recognized  as  having  legal  free- 
holds in  the  lands  they  occupied,  till,  in  a  considerable  part  of 
England,  there  grew  up,  from  this  origin,  a  system  of  estates 
called  copyholds,  which  are  familiar  at  this  day  to  every  Eng- 
lish lawyer. 

But  probably  the  most  effective  instrument  in  changing 
the  condition  of  the  English  villein  —  for,  as  1  have  already 
said,  we  look  in  vain  for  any  statute  as  doing  this  —  was  the 
preaching  and  writings  of  Wickliffe,  who  was  contemporary 
with  Richard  11.  All  writers  agree  in  ascribing  to  his  mission 
of  reform  a  direct  agency  in  breaking  down  the  lines  which 
had  hedged  in  villenage  as  an  institution  of  the  common  law. 
It  was  one  of  the  doctrines  which  he  and  his  followers  taught, 
that  "  it  was  contrary  to  the  principles  of  the  Christian  reli- 
gion, that  any  one  should  be  a  slave :  "  and  so  readily  did  this 
chime  in  with  the  public  sentiment  of  the  day,  that  we  find, 


VILLENAGE.  i 

in  a  little  more  than  a  hundred  years  after  Wickliffe's  death, 
Henry  VIIL,  a  monarch  by  no  means  of  a  delicate  or  sensi- 
tive religious  conscience,  manumitting  Henry  Knight,  a 
tailor,  and  John  Herle,  a  husbandman,  "  our  natives  ;  "  recit- 
ing as  a  reason,  "  Whereas  God  created  all  men  free,  but 
afterwards  the  laws  and  customs  of  nations  subjected  some 
under  the  yoke  of  servitude,  we  think  it  pious  and  meritorious 
with  God,"  <fec.,  and  declaring  them  free. 

One  thing,  in  considering  this  subject,  is  noticeable ;  and 
that  is  the  rapidity  with  which,  after  Wickliffe's  time,  public 
sentiment  advanced  in  England  in  the  direction  of  emancipat- 
ing the  class  of  villeins,  and  how  soon  it  got  ahead,  if  I  may 
use  such  a  term,  of  the  law  itself  upon  the  subject.  Thus 
Coke,  who  did  not  publish  his  commentary  upon  Littleton, 
called  his  "First  Institute,"  till  1628,  — the  third  year  of 
Charles  I.,  —  devotes  the  matter  of  some  fifty  octavo  pages  in 
that  work  to  the  subject  of  the  law  of  villenage  ;  when; 
in  fact,  the  last  case  to  be  found  in  any  book  of  English  re- 
ports upon  the  subject  was  decided  in  the  fifteenth  year  of 
James  I. ;  and  only  four  cases  of  the  kind  are  reported  for  the 
space  of  fifty  years  before  that. 

As  one  reads  these  reports,  meagre  as  they  are,  he  is 
constantly  struck  with  the  struggle  there  is  in  the  judicial 
mind  in  giving  force  and  effect  to  the  law,  and,  at  the  same 
time,  favoring  the  claim  of  freedom;  holding  the  adverse 
party  to  the  strictest  proof,  and  always  construing  a  doubtful 
point,  as  they  express  it,  in  favorem  lihertatis  (Noy's  Reports, 
27  ;  Dyer's  Reports,  283  ;  11  State  Trials,  Hargrave's  argu- 
ment, 342). 

Villenage  may  therefore  be  assumed  to  have  died  out  in 
England  in  the  last  years  of  Elizabeth,  or  the  first  of  James  I. ; 
and  neither  the  term  nor  the  idea  ever  seems  to  have  found 
its  way  into  the  Colonies  of  America.  And  yet,  as  already 
remarked,  it  was  not  accomplished  by  any  act  of  legislation, 
or  even  judicial  decision.     The  notion  that  one  man  might 


8  VILLENAGE. 

have  a  property  in  another,  by  the  common  law,  was  still 
retained,  as  will  be  seen,  long  after  its  practical  abrogation 
by  the  omnipotence  of  public  sentiment. 

By  a  singular  coincidence,  negro  slavery  began  to  obtain 
a  foothold  in  England  about  the  time  of  the  extinction  of  that 
of  villenage.  It  is  stated,  that,  "  in  the  year  1553,  four  and 
twenty  negroes  were  brought  into  this  island  from  the  coast 
of  Africa,  and  immediately  to  an  English  port,  as  at  that  time 
we  had  no  American  or  sugar  trade"  (Harrington's  Stat.  281, 
quoting  Hakluyt).  And  Fuller,  whose  "  History  of  the 
Worthies  of  England  "  was  published  in  1662,  in  his  char- 
acter of  the  "  good  sea-captain,"  says,  "  In  taking  of  a  prize, 
he  most  prizeth  the  men's  lives  whom  he  takes,  though  some 
of  them  may  chance  to  be  negroes  or  savages ;  and  it  is  the 
custom  of  some  to  throw  them  overboard."  "  But  our  captain 
counts  the  image  of  God,  nevertheless,  his  image,  cut  in  ebony 
as  if  done  in  ivory  "  (Barrington,  281,  m.). 

Between  that  period  and  the  time  of  Somerset's  case,  of 
which  I  am  to  speak  more  at  length,  questions  occasionally 
arose  in  the  English  courts  as  to  the  right  of  property  in  negro 
slaves ;  in  some  of  which  the  right  was  recognized,  and  in 
others  denied. 

The  slave-trade,  it  should  be  remembered,  was  not  only 
lawf^il  during  this  time,  but  England,  with  her  accustomed 
disposition  to  grasp  whatever  should  give  her  commercial 
influence  and  advantage,  was  monopolizing  a  trade  that  was 
enriching  Bristol  and  other  of  her  cities ;  and  all  her  colonies 
in  which  slave-labor  could  be  employed,  including  those  of 
New  England,  were  made  the  marts  of  a  commerce  so  base 
and  abominable.  While,  therefore,  there  was  in  the  English 
courts  the  same  feeling  of  disfavor  towards  what  was  called 
the  new  slavery  as  had  been  manifested  in  respect  to  the 
ancient  form  of  villenage,  it  is  not  singular,  that,  at  times,  the 
ancient  notion  of  the  common  law,  sustained  as  it  was  by 
the  policy  of  the  government  and  the  trade  and  business 


VILLENAGE.  9 

of  the  nation,  should  be  found  to  prevail  in  questions  involv- 
ing the  rights  of  the  master  to  the  person  and  services  of  the 
slave. 

It  is  stated  in  Rushworth's  "  Historical  Collections,"  that, 
in  the  eleventh  of  EHzabeth  (which  would  have  been  1569), 
one  Cartwright  brought  a  slave  from  Russia  into  England,  and 
"  would  scourge  him : "  but  of  what  color  he  was,  it  is  not 
stated ;  and  it  is  said,  when  "  he  was  questioned  for  this,"  "  it 
was  resolved  that  England  was  too  pure  an  air  for  a  slave  to 
breathe  in"  (11  State  Trials,  344;  Barrington,  282).  Mr. 
Hargrave,  in  his  argument  for  Somerset  before  Lord  Mansfield, 
endeavored  to  apply  this  as  a  conceded  dogma  of  the  common 
law,  although  at  that  time,  as  stated  in  the  course  of  that  trial, 
there  must  have  been  fourteen  or  fifteen  thousand  slaves  in 
England.  The  thought  here  expressed  is  among  the  highest 
and  most  glorious  eulogies  which  could  be  uttered  in  praise 
of  any  state  or  government ;  and  it  may  be  well  to  examine 
for  a  moment  with  what  justice  it  was  then  claimed  for  the 
air  of  England,  in  the  face  of  her  history  for  centuries  after 
the  slave-trade  obtained  a  footing  in  her  commercial  enter- 
prise. The  sentiment  is  said  to  have  been  authoritatively 
uttered  in  1569.  It  is  reported  in  1772,  without  the  citation 
of  a  single  instance  of  its  having  been  recognized  during  that 
long  interval  of  time,  during  which  the  question  of  property 
in  slaves  had  been  repeatedly  raised  in  the  English  courts ; 
and  when  repeating  it,  as  he  did,  Mr.  Hargrave  was  obliged 
to  controvert  the  position  taken  by  Mr.  Barrington,  whom  he 
cites,  who  ascribes  this  statement  to  the  famous  John  Lilburn, 
whose  memorable  imprisonments  and  whippings  and  fines, 
and  sittings  upon  the  pillory,  and  gaggings,  by  the  order  of  the 
Star  Chamber,  in  the  time  of  Charles  I.,  are  among  the  dis- 
graceful records  of  criminal  justice  in  England.  He  was  a 
radical  of  the  severest  stamp ;  and  his  declarations,  made  in 
the  course  of  his  sharp  and  protracted  controversy  with  the 
arbitrary  power  of  Charles,  through  the  press,  may  very  pro- 

2 


10  VILLENAGE. 

bably  require  to  have  some  little  allowance  made  for  their 
exactness,  or  the  precision  with  which  they  were  limited  in 
their  terms.  Barrington  adds  to  his  notice  of  what  Lil- 
burn  had  advanced,  "  But  it  does  not  from  thence  follow 
that  all  his  doctrines  were  law.  A  slave  may  continue  in  a 
state  of  servitude,  though  he  breathes  the  air  of  this  land  of 
liberty,  the  law  of  which  will  protect  him  from  too  severe 
punishments  of  his  master,  though  it  may  not  entirely  emanci- 
pate him  "  (Barrington,  282,  n.). 

And,  in  the  famous  system  of  laws  proposed  by  the  re- 
nowned John  Locke  for  Carolina,  one  article  was  in  these 
words :  "  Every  freeman  of  Carolina  shall  have  power  and 
authority  over  his  negro  slaves,  of  what  opinion  or  religion, 
for  ever  "  (Barrington,  280).  This  had  reference  to  the 
notion  to  which  Blackstone  refers,  which  prevailed  with  many, 
that,  while  a  heathen  might  be  held  in  slavery,  a  baptized 
Christian,  though  a  negro,  might  not  be.  This  constitution  of 
Mr.  Locke  was  established  in  1669  ;  but  was  repealed,  at  the 
instigation  of  the  people  of  the  Carolinas,  in  1693.  I  have 
referred  to  this  only  as  showing  how  far  this  pretended  purity 
of  English  air  as  to  slavery  affected  the  moral  health  and 
tone  of  her  great  and  good  men,  while  Massachusetts  and 
other  of  the  English  Colonies  were  struggling  to  rid  them- 
selves of  an  institution  with  which  they  did  not  sympathize. 

I  have  said  that  the  question  of  property  in  negro  slaves 
arose  from  time  to  time  in  the  English  courts  between  their 
introduction  in  1553,  and  the  final  settlement  of  the  question 
in  1772,  which  were  variously  determined ;  the  court,  in  each 
case,  going  back  to  the  common  law  for  principles  to  guide 
them,  and  in  no  case,  I  believe,  referring  to  any  English  stat- 
ute upon  the  subject. 

In  1669,  an  action  of  trover  was  tried  in  the  King's  Bench 
for  a  hundred  negroes,  in  which  the  jury  found  a  special  ver 
diet,  "  that  the  negroes  were  infidels,  and  the  subjects  of  an 
infidel  prince,  and  are  usually  bought  and  sold  in  America  as 


VILLENAGE.  11 

merchandise ;  and  that  the  plaintiff  bought  these,  and  was  in 
possession  of  them  till  the  defendant  took  them."  It  was 
argued  that  there  could  be  no  property  in  the  person  of  a  man, 
sufficient  to  maintain  trover ;  but  the  court  held,  "  that  ne- 
groes being  usually  bought  and  sold  among  merchants  as 
merchandise,  and  also  being  infidels,  there  might  be  property 
in  them  sufficient  to  maintain  trover "  (Butts  v.  Penny, 
2  Levinz's  Reports,  201).  In  another  report  of  the  case,  it 
is  said,  "  They  are  by  usage  tanquam  bona,  and  go  to  adminis- 
trator until  they  become  Christians ;  and  thereby  they  are 
enfranchised "  (3  Keble's  Reports,  785). 

In  a  case  in  the  English  Common  Pleas,  in  1693,  an  action 
having  been  brought  for  so  many  whelps,  without  stating  whe- 
ther they  "were  of  dogs  or  of  bears  or  other  wild  animals,  a 
question  arose  whether  property  could  be  predicated  of  such 
things ;  and  the  court  in  giving  judgment,  while  seeking  for 
analogies  to  guide  them,  remaVk  that  "  trover  lies  for  musk- 
cats  and  of  monkeys,  because  they  are  merchandise  ;  and,  for 
the  same  reason,  it  has  been  adjudged  that  trover  lies  of 
negroes  "  (Chambers  v.  Wackhouse,  3  Levinz,  336). 

Lord  Holt,  who  was  Chief  Justice  under  William  III.,  was 
of  the  number  who  seems  to  have  set  his  face  against  recog- 
nizing negro  slavery  in  England  ;  although  he  expressly 
recognizes  villenage  as  a  common-law  right,  as  well  as  the 
legality  of  the  traffic  in  slaves  in  Virginia.  In  a  case  that 
came  up  before  him  to  recover  the  price  of  a  negro  alleged 
to  have  been  sold  in  London,  he  held  that  the  plaintiff  could 
not  recover,  unless  he  alleged  the  sale  to  have  been  made  in 
Virginia  ;  and  that,  as  soon  as  a  negro  comes  into  England,  he 
is  free.  "  One  may  be  a  villein  in  England,  but  not  a  slave." 
In  the  language  of  his  associate.  Judge  Powel,  "the  law 
takes  no  notice  of  a  negro  "  (Smith  v.  Brown,  2  Salkeld's  Re- 
ports, 666  ;  Holt's  Rep.,  495). 

In  another  case,  before  the  same  chief  justice,  the  action 
was  trespass  for  taking  unum  JEthiopem,  Anglice  vocatum  ("  a 


12  VILLENAGE. 

negro  "),  of  the  plaintiff,  of  the  value  of  a  hundred  pounds. 
Upon-  the  trial,  it  appeared  that  the  negro  had  been  a  slave 
in  Barbadoes ;  had  been  assigned  to  the  widow  of  his  owner 
as  dower  out  of  her  husband's  real  estate,  according  to  the 
law  of  Barbadoes  ;  that  she  had  brought  him  to  England, 
where  she  died,  leaving  the  negro,  who  was  now  claimed  by 
the  heir  of  his  former  owner.  The  jury  found  as  a  special 
verdict,  "  that  the  negro  had  been  baptized  after  taking  him  " 
from  Barbadoes ;  and  the  case  was  argued  upon  the  point, 
whether,  by  such  baptism,  he  had  become  free.  The  counsel 
for  the  defence  said,  that,  "  being  baptized  according  to  the 
rite  of  the  church,  he  is  thereby  made  a  Christian ;  and  Chris- 
tianity is  inconsistent  with  slavery."  He  refers,  by  way  of 
analogy,  to  the  case  of  the  Turks :  "  They  do  not  make  slaves 
of  their  own  religion,  though  taken  in  war ;  and  if  a  Christian 
be  so  taken,  yet  if  he  renounce  Christianity,  and  turn  Maho- 
metan, he  doth  thereby  obtain  his  freedom."  The  case  was 
decided  in  favor  of  the  defendant,  on  the  ground,  as  stated 
by  our  reporter,  that  "  no  action  of  trespass  would  lie  for 
taking  away  a  man  generally,  though  there  might  be  a  special 
action  of  trespass  for  taking  his  servant"  (Chamberlain  v. 
Harvey,  5  Modern  Reports,  182  ;  Carthew's  Reports,  396 ; 
Lord  Raymond's  Reports,  146). 

And  yet  a  case  is  reported  immediately  afterwards,  by  Lord 
Raymond,  wherein  it  was  adjudged  that  "  trover  would  lie 
for  a  negro  boy,  for  they  are  heathens,  and  therefore  a  man 
may  have  property  in  them  ;  and  that  the  court,  without  aver- 
ment made,  will  take  notice  that  they  are  heathens."  Black- 
stone  (1  Commentaries,  425)  refers  to  this  notion,  that  the 
baptism  of  a  slave  affected  his  status  of  slavery ;  at  which 
one  of  his  annotators  expresses  surprise  that  he  should  con- 
descend to  treat  of  this  ridiculous  notion  (Christian's  note) : 
but  it  is  certainly  no  less  ridiculous  than  true,  that  courts 
gravely  entertained  the  inquiry. 

Another  case  came  up  before  Lord  Holt  in  1707,  in  the 


VILLENAGE.  13 

time  of  Queen  Anne,  which  was  also  an  action  of  trover  for 
uno  jEthiope  vocato  ("  a  negro  ").  The  counsel  for  the  plain- 
tiff relied  partly  upon  the  acknowledged  law  of  the  planta- 
tions, and  partly  upon  the  Levitical  law,  whereby  the  master 
had  the  power  to  kill  his  slave,  as  "  he  is  but  the  master's 
money."  The  court,  however,  denied  the  doctrine,  affirming 
that  an  action  does  not  lie  for  a  negro  any  more  than  for  any 
other  man ;  "/or  the  common  law  takes  no  notice  of  negroes  *" 
being  different  from  other  men.  By  the  common  law,  no  man 
can  have  a  property  in  another,  but  in  special  cases,  as  in  a 
villein,  but  even  in  him  not  to  kill  him :  so  in  captives  took  in 
war ;  but  the  taker  cannot  kill  them,  but  may  sell  them  to 
ransom  them "  (Smith  v.  Gould,  2  Lord  Kaymond,  1274 ; 
Salkeld,  666). 

These  opinions  of  Lord  Holt,  one  of  the  strongest  and 
wisest  men  that  ever  sat  upon  the  King's  Bench,  must  un- 
doubtedly have  had  great  effect  in  giving  a  proper  direction 
to  the  public  mind  of  England ;  but  it  is  nevertheless  true, 
that  not  only  were  there  slaves  in  England  at  that  time,  and 
continued  to  be  up  to  Lord  Mansfield's  memorable  judgment, 
but  more  than  one  of  the  English  judges  of  unquestioned 
eminence  and  ability  insisted  and  affirmed,  as  late  as  the  mid- 
dle of  the  last  century,  that  a  slave  was  the  subject  of  property 
in  England,  and  might  be  sued  for  as  such.  Among  these 
were  Lords  Talbot  and  Hardwicke ;  than  one  of  whom,  at  least, 
no  abler  man  has  ever  sat  upon  the  woolsack.  In  1749,  Lord 
Chancellor  Hardwicke  reviews  the  cases  I  have  cited  above, 
and  says,  "  I  have  no  doubt  but  trover  will  lie  for  a  negro 
slave.  It  is  as  much  property  as  any  other  thing."  He  says 
that  he  and  Lord  Talbot,  when  they  were  Attorney  and  Soli- 
citor General,  gave  an  opinion  that  christening  a  slave  did  not 
alter  his  condition.  He  likens  the  condition  of  the  negro 
slave  to  that  of  a  villein  at  common  law,  and  that  there  was 
no  law  aholishing  villenage  (Pearne  v.  Lisle,  Ambler's  Reports, 
76,  77). 


14  VILLENAGE. 

Without  taking  up  any  more  time  with  particular  cases, 
enough  has  been  seen  to  give  us  some  idea  of  the  state  of 
mind  in  the  courts  and  among  the  people  when  the  occasion 
came  up  for  a  final  decision  of  the  question.  In  speaking  of 
this,  Lord  Campbell  confirms  what  was  intimated  in  an 
earlier  stage  of  this  examination,  that  "  Lord  Mansfield  jirst 
established  the  grand  doctrine,  that  the  air  of  England  is  too 
pure  to  be  breathed  by  a  slave ; "  though  this,  it  will  be 
remembered,  was  still  thirty-four  years  before  she  abolished 
her  slave-trade,  and  more  than  sixty  years  before  she  set  her 
slaves  free  in  her  colonies. 

The  wretched  sophistry  of  the  civil  rights  of  a  man,  in 
respect  to  his  personal  freedom,  depending  upon  his  being  a 
heathen  or  otherwise,  had  long  since  been  discarded  ;  so  that 
the  issue  was  the  naked  one.  Could  a  man  be  held  a  slave  in 
England  ?  It  was  a  question  of  great  interest  in  the  abstract ; 
but  in  its  effect  upon  fourteen  or  fifteen  thousand  slaves  then 
in  England,  estimated  at  more  than  seven  hundred  thousand 
pounds  sterling,  it  became  a  matter  of  momentous  pecuniary 
consideration  to  great  numbers  of  her  citizens.  On  the  other 
hand,  besides  the  prevailing  sentiment  in  the  minds  of  so 
many  of  the  citizens,  the  circumstances  of  the  particular  case 
in  which  the  question  was  to  be  presented  were  greatly  in 
favor  of  the  negative  of  the  proposition. 

The  name  of  the  slave  was  James  Somerset,  who  had  been 
brought  by  his  master  from  Virginia,  as  stated  in  the  report 
of  the  case,  to  London.  In  some  of  the  accounts,  it  is  stated 
that- he  there  fell  sick,  and  was  turned  out  into  the  street  to 
die,  and  was  found  in  this  condition  by  the  celebrated  Gran- 
ville Sharp  and  others  associated  with  him,  and,  under  their 
care,  was  restored  to  health ;  when  his  master  claimed  him  as 
his  property,  and  carried  him  on  board  a  vessel  in  the  Thames, 
to  transport  him  back  to  Virginia.  Thereupon  certain  indi- 
viduals, by  the  procurement,  undoubtedly,  of  Sharp,  sued 
out  a  habeas  corpus  from  Lord  Mansfield ;  and  he,  wishing  to 


VILLENAGE.  1 5 

have  the  matter  heard  before  the  King's  Bench,  transferred 
the  proceedings  into  that  court.    This  was  in  December,  1771. 

It  was  in  the  preparation  and  prosecution  of  the  proceed- 
ings in  this  case,  that  Granville  Sharp,  whose  name  is  now 
so  honorably  distinguished  for  its  connection  with  the  sup- 
pression of  the  slave-trade,  was  first  publicly  known  in  Eng- 
land. 

Mr.  Hargrave,  a  name  familiar  to  the  profession,  was  one 
of  the  leading  counsel  in  favor  of  Somerset ;  while  Mr.  Wal- 
lace, also  an  eminent  barrister,  and  Mr.  Dunning,  one  of  the 
strong  men  of  England,  and  the  original  founder  of  the  noble 
house  of  Ashburton,  conducted  the  defence.  The  case  may 
be  found  in  Lofft's  "  Reports,"  p.  1 ;  and  the  able  and  learned 
argument  of  Mr.  Hargrave  is  found  in  the  11th  State 
Trials,  339.  The  whole  history  of  English  villenage  and 
slavery  is  fully  examined  in  the  arguments  of  the  counsel, 
and  the  point  fully  discussed  how  far  negro  slavery  is  a  differ- 
ent institution  from  that  of  villenage ;  but  the  length  to  which 
this  article  has  already  grown  forbids  an  analysis  of  the 
several  points  which  were  pressed  upon  the  consideration  of 
the  court. 

The  hearing  of  the  case  seems  to  have  come  up  on  the 
14th  May,  1772  ;  and  the  final  opinion  was  given  on  the  22d 
June  following.  Although  the  magnitude  of  the  questions 
involved  would  naturally  lead  the  court  gravely  to  dehberate 
and  consider  before  deciding  them,  it  is  obvious,  from  the 
efforts  of  the  distinguished  counsel,  and  the  time  occupied  by 
the  court  in  hearing  and  deliberating  upon  the  same,. that  the 
main  question  till  that  time  was  an  open  one,  to  be  then  set- 
tled for  the  first  time,  and  upon  principle  rather  than  authority. 
Indeed  Lord  Mansfield  says  himself,  that  he  advised  the  par- 
ties to  settle  the  matter  between  them,  as  five  or  six  other 
cases  that  had  come  before  him  had  been,  under  his  advice  ; 
nor  did  he  give  any  opinion  till  pressed  to  do  so  by  the  perti- 
nacity of  the  parties  in  insisting  upon  a  decision. 


y 


\ 


16  VILLENAGE. 

The  opinion  of  the  Chief  Justice  as  reported  is  quite  brief, 
and,  beyond  a  statement  of  what  is  decided,  contains  few 
general  or  important  suggestions. 

"  If  the  parties  will  have  judgment,"  says  he,  ^^  jicti  justitia 
ruat  ccelum,  let  justice  be  done,  whatever  be  the  conse- 
quences. Fifty  pounds  a  head  may  not  be  a  high  price : 
then  a  loss  follows  to  the  proprietors  of  above  seven  hundred 
thousand  pounds  sterling."  "  An  application  to  Parliament, 
if  the  merchants  think  the  question  of  great  commercial  con- 
cern, is  best,  and  perhaps  the  only  method  of  settling  the 
point  for  the  future."  Remarks  like  these,  which  fell  from 
the  Chief  Justice,  clearly  indicate  a  hesitation  and  reluctance 
to  meet  the  question  with  all  its  consequences ;  but,  at  a  sub- 
sequent day,  he  remarked,  "  The  state  of  slavery  is  of  such  a 
nature,  that  it  is  incapable  of  being  introduced  on  any  reasons, 
moral  or  political,  but  only  positive  law,  which  preserves  its 
force  long  after  the  reasons,  occasion,  and  time  itself,  from 
whence  it  was  created,  is  erased  from  memory.  It  is  so 
odious,  that  nothing  can  be  suffered  to  support  it  but  positive 
law.  Whatever  inconveniences,  therefore,  may  follow  from  a 
decision,  I  cannot  say  this  case  is  allowed  or  approved  by 
the  law  of  England ;  and  therefore  the  black  must  be  dis- 
charged." 

A  step  so  important  in  the  great  scheme  which  had  then 
begun  to  develop  itself  for  putting  an  end  to  slavery  and  the 
slave-trade  in  England  could  not  fail  to  be  seized  upon  by  the 
friends  of  the  measure  to  a  good  purpose,  and  it  told  with 
great  effect  in  the  coming  struggle  which  so  long  agitated 
England.  And  when  it  is  remembered,  as  I  have  more  than 
once  said,  that,  up  to  this  stage  of  the  movement,  no  act  of 
legislation  had  been  invoked  in  its  aid,  I  know  not  how  better 
to  do  justice  to  the  agency  by  which  practical  emancipation 
was  wrought  out  in  England  than  by  borrowing  the  language 
of  Judge  Best  in  a  case  v/here  the  owner  of  slaves  on  the 
coast  of  Florida  brought  an  action  against  the  commander  of 


VILLENAGE.  17 

an  English  squadron  and  man-of-war,  who,  while  on  our  coast 
in  the  war  of  1812,  received  and  harbored  certain  slaves  who 
had  escaped  from  their  master,  an  English  subject,  resident 
within  the  Spanish  Territory  of  Florida.  The  claim  was  dis- 
allowed ;  and  Mr.  Justice  Best,  in  giving  his  opinion,  cites  the 
case  of  Somerset,  and  adds,  "  It  is  a  matter  of  pride  to  me  to 
recollect,  that  while  economists  and  politicians  were  recom- 
mending to  the  Legislature  the  protection  of  this  traffic,  and 
senators  were  framing  statutes  for  its  promotion,  and  declar- 
ing it  a  benefit  to  the  country,  the  judges  of  the  land,  above 
the  age  in  which  they  lived,  standing  on  the  high  ground  of 
natural  right,  and  disdaining  to  bend  to  the  lower  doctrine 
of  expediency,  declared  that  slavery  was  inconsistent  with 
the  genius  of  the  English  Constitution,  and  that  human  beings 
could  not  be  the  subject-matter  of  property.  As  a  lawyer,  I 
speak  of  that  early  determination,  when  a  difierent  doctrine 
was  prevailing  in  the  senate,  with  a  considerable  degree  of 
professional  pride."  Forbes  v.  Cochrane,  2  Barnewall  and 
Cresswell's  Reports,  470. 

In  the  light  of  our  own  history,  I  might  add,  if  I  were 
not  transcending  the  limits  of  my  subject,  that,  as  citizens  of 
Massachusetts,  we  might  all  indulge  a  pride  equally  just  and 
generous,  that  here,  in  the  courts  of  the  Province,  the  ruling 
of  Lord  Mansfield  was  anticipated  by  two  years,  in  favor  of 
personal  freedom  and  human  rights. 

But  my  purpose  was  only  to  speak  of  the  extinction  of 
slavery  in  the  mother-country ;  and  my  chief  regret  is  that 
I  have  felt  obliged,  in  doing  so,  to  tax  so  heavily  the  time  and 
patience  of  those  for  whom,  as  well  as  for  my  own  curiosity 
and  satisfaction,  this  research  has  been  made. 

Note.  —  In  all  the  published  accounts  of  Somerset's  case  which 
had  fallen  under  my  notice,  he  is  spoken  of  as  having  come  from 
Virginia  to  London.  In  the  Journal  of  Granville  Sharp  himself, 
preserved  in  the  memoir  of  his  life,  he  speaks  of  him  as  "  James 
Somerset,  a  negro  from  Virginia."     The  memoir  states  that  he  had 

8 


"18  VILLENAGE. 

been  brought  to  England  in  November,  17G9,  by  his  master,  Mr. 
Charles  Stewart ;  and,  in  process  of  time,  left  him.  Stewart  found  an 
opportunity  of  seizing  him  unawares ;  and  he  was  carried  on  board 
the  "  Ann  and  Mary,"  in  order  to  be  carried  to  Jamaica,  and  there 
sold  as  a  slave.  But  there  is  no  intimation  that  he  had  been  treated 
in  the  manner  mentioned  by  some  of  the  writers  from  which  the 
statement  as  to  his  having  been  sick,  and  turned  into  the  street,  has 
been  taken. 

Since  the  above  article  was  prepared,  I  have  been  kindly  furnished, 
^  by  my  friend  Hon.  James  M.  Robbins  (one  of  our  associates,  who  was 
present  when  this  paper  was  read),  with  original  papers  and  letters, 
from  which  it  appears  that  Somerset  was  taken  from  Boston  to  Eng- 
/  land,  and  was  the  servant  of  Mr.  Charles  Stewart,  who  was  the 
cashier  and  paymaster  of  customs  in  North  America  in  1771  and  for 
some  years  previous,  and  resided  in  Boston.  Mr.  Robbins  has  also 
given  me  this  brief  account  of  Mr.  Stewart.  He  was  a  Scotch  gen- 
tleman, and  left  home,  with  his  servant  Somerset,  in  1769  ;  still 
holding  his  office  some  years  longer,  through  his  deputy,  Nathaniel 
Coffin,  the  father  of  Admiral  Sir  Isaac  Coffin  and  Gen.  John  Coffin 
of  the  British  Navy  and  Army.  Mr.  Stewart  was  an  intimate  friend  i 
and  countryman  of  the  maternal  grandfather  of  Mr.  Robbins,  who 
also  went  to  England  in  1771-2,  and  was  present  in  court  with  Mr. 
Stewart  at  the  first  hearing  of  Somerset's  case ;  which  caused 
Mr.  Stewart  to  write  him  in  reference  to  this  matter.  The  mother 
of  Mr.  Robbins  was  a  child  of  thirteen  years  of  age  when  Mr. 
Stewart  and  his  servant  went  from  here  to  England  in  1769;  and 
informed  Mr.  Robbins,  many  years  ago,  that  Stewart  often  visited 
her  father,  who  was  James  Murray,  Esq.,  of  Boston,  and  brought 
Somerset  with  him  to  their  house,  then  in  Milton. 

I  am  permitted  to  give  the  following  extract  from  a  letter  written 
by  Mr.  Stewart  to  Mr.  Murray  from  London,  June  15,  1772  :  "  I 
suppose  you  will  be  desirous  to  hear  how  the  negro  cause  goes  on. 
There  have  been  two  more  hearings  in  it.  I  did  not  attend  either ; 
but  am  told  that  some  young  counsel  flourished  away  on  the  side  of 
liberty,  and  acquired  great  honor.  Dunning  was  dull  and  languid, 
and  would  have  made  a  much  better  figure  on  that  side  also.  Lord 
Mansfield  said  it  was  a  cause  of  the  greatest  importance  ;  that  great 
inconvenience  and  ill  consequences  must  attend  the  decision  of  it 
either  way ;  and  therefore  he  would  not  give  judgment  in  it,  except 
insisted  on  by  the  parties.     In  that  case,  he  would  take  the  opinion 


VILLENAGE.  19 

of  all  the  judges.  If  they  agreed,  judgment  should  be  pronounced ; 
if  not,  the  cause  must  be  argued  again  before  them  all.  In  the  mean 
time,  he  strongly  recommended  to  make  it  up,  hinted  at  emancipating 
the  slave,  and  advised  the  West-India  merchants,  &c.,  to  apply  to 
Parliament  for  an  act  for  further  securing  their  property.  Upon  the 
whole,  everybody  seems  to  think  it  will  go  in  favor  of  the  negro. 
The  West-India  planters  and  merchants  have  taken  it  off  my  hands  ; 
and  I  shall  be  entirely  directed  by  them  in  the  further  defence  of  it. 
It  has  brought  my  name  forward — or  rather  that  of  Capt.  Stewart, 

James  Stewart, Stewart,  Esq.  —  much  more  than  I  would  wish. 

The  papers,  however,  have  been  tolerably  decent  with  respect  to  me ; 

but  I  am  very  sorry  for  the  load  of  abuse  thrown  on  L — d  M 

for  hesitating  to  pronounce  judgment  in  favor  of  freedom.  Dunning 
has  come  in  also  for  a  pretty  good  share  for  taking  the  wrong  side. 
This  general  subject  of  conversation,  of  which  I  have  been  involunta- 
rily the  cause,  is  now  suspended  for  a  time." 

It  is  not  without  its  significance,  that  the  memory  of  a  gentleman 
as  highly  connected  in  family,  and  as  much  honored  in  this  community 
Sa  he  was  by  the  offices  of  distinction  and  power  which  he  filled, 
should  at  this  day  be  recalled  to  the  present  generation  chiefly  by  his 
association  with  the  name  and  history  of  the  slave  whom  he  took 
with  him  as  a  body-servant  in  his  visit  to  the  mother-country. 

In  respect  to  the  counsel  concerned  in  this  trial,  we  have  a  pretty 
full  account  from  the  "  Life  "  of  Sharp.  The  leading  original  coun- 
sel was  Serjeant  Davy.  Mr.  Hargrave  was  a  young  gentleman  of 
Lincoln's  Inn,  then  just  rising  into  notice,  who  volunteered  his  services 
to  Mr.  Sharp.  The  case  was  opened  by  Serjeant  Davy,  Feb.  7, 1772, 
before  Lord  Mansfield,  and  Justices  Aston,  Willis,  and  Ashhurst. 
The  opening  proposition  of  Mr.  Davy,  and  which  he  labored  to  main- 
tain, was,  "  that  no  man  at  this  day  is  or  can  be  a  slave  in  England." 
He  was  followed  on  the  same  side  by  Serjeant  Glynn.  After  he  had 
closed,  the  court  ordered  the  case  to  stand  over  till  the  next  term. 
On  the  9th  of  May,  the  hearing  was  resumed  by  Mr.  Mansfield  in 
favor  of  Somerset ;  when  it  was  again  adjourned  till  the  14th,  when 
Mr.  Hargrave  followed  upon  the  same  side  ;  and  the  case  upon  that 
side  was  closed  by  Mr.  Alleyne,  who,  like  Mr.  Hargrave,  was  a 
young  man.  Through  all  these  arguments,  Somerset  is  spoken  of  as 
from  Virginia,  and  reference  constantly  is  made  to  the  laws  of  Virgi- 
nia ;  Virginia  and  America  probably  being,  in  an  Englishman's  mind, 
synonymous  terms.     Nor  is  this  surprising,  when  it  is  remembered 


20  VILLENAGE. 

tluit  Lord  North,  when  addressing  the  House  of  Lords  in  favor  of 
taxing  the  Colonies,  spoke  of  the  "  Island  of  Virginia,"  and  no  one 
of  that  body  corrected  him.  It  should  be  remembered,  to  the  credit 
of  the  profession,  that  none  of  the  counsel  for  the  negro  in  this  case 
"would  accept  any  compensation  for  their  services.  As  given  by  the 
biographer  of  Mr.  Sharp,  it  was  in  the  close  of  Mr.  Alleyne's  address 
that  we  find  that  so  often-quoted  expression,  ascribed  by  Lord  Camp- 
bell and  others  to  Lord  Mansfield,  "  The  slave-holders  will  know,  that, 
when  they  introduce  a  slave  into  this  country  as  a  slave,  this  air  is  too 
free  for  him  to  breathe  in." 

On  the  side  of  the  master  were,  as  above  stated,  Mr.  "Wallace  and 
Mr.  Dunning,  who,  in  a  former  case,  had  taken  the  opposite  side  of 
the  question.  Mr.  Davy  closed  the  cause.  The  judgment  was  ren- 
dered on  the  22d  June. 

The  biographer  of  Sharp  states,  in  connection  with  his  efforts  to 
have  slavery  declared  unlawful  in  England,  this  singular  circumstance. 
He  had  cited,  in  the  trial  of  one  of  the  cases,  an  extract  from  Black- 
stone,  in  these  words  :  "  And  this  spirit  of  liberty  is  so  deeply  im- 
planted in  our  Constitution,  and  rooted  even  in  our  very  soil,  that  a 
slave  or  a  negro,  the  moment  he  lands  in  England,  falls  under  the 
protection  of  the  laws ;  and,  with  regard  to  all  national  rights, 
becomes  eo  instanti  a  free  man." 

The  counsel  for  the  master  denied  that  Blackstone  laid  down  any 
such  proposition,  and  produced  the  volume  and  page  cited,  and  read, 
"A  negro,  the  moment  he  lands  in  England,  falls  under  the  protection 
of  the  laws,  and  so  far  becomes  a  freeman  ;  though  his  master's  right 
to  his  service  may  possibly  still  continue."  This,  of  course,  led  to  a 
further  investigation  ;  when  it  was  discovered  that  Sharp  had  given 
the  language  of  the  first  edition  of  the  "  Commentaries  ;  "  and  that 
the  author,  during  these  trials,  had  altered  his  text  in  his  fifth  edition, 
from  which  the  counsel  had  read.  Whatever  one  may  think  of 
an  historian's  changing  his  propositions  in  a  subsequent  edition  of  his 
work  to  suit  the  political  temper  of  the  passing  hour,  it  is  certainly 
to  be  deprecated  that  an  author  so  widely  known  and  universally 
respected  as  a  legal  authority  should  have  been  chargeable  with  such 
a  folly  or  discrepancy  upon  so  grave  a  subject. 

As  to  the  course  taken  by  Lord  Mansfield  in  this  case,  though 
finally  bold  and  decisive,  he  was  obviously  slow,  if  not  reluctant,  to 
act.  The  opinions  of  Lord  Hardwick  and  Talbot  had  been  the  re- 
ceived doctrine  of  the  courts  ;  and  he  had  himself  repeatedly  given  up 


VILLENAGE.  21 

slaves  to  their  masters,  upon  application  for  his  aid  in  their  behalf, 
when  they  had  run  away  from  them.  Sharp  states  this  fact,  among 
others,  in  his  letter  to  the  Bishop  of  London,  in  1795  :  but  the  efforts 
of  those  who  denied  the  right  to  hold  slaves  in  England  had  gained 
such  a  hold  upon  the  popular  mind  by  the  time  that  Somerset's  case 
was  heard  in  1772,  that  he  felt  compelled,  by  his  own  convictions,  to 
meet  the  fearful  responsibility  of  declaring  a  judgment  which  destroyed 
the  rights  of  every  slaveholder  in  England  to  hold  his  slave  any 
longer  as  property  ;  and,  by  so  doing,  was  fortunate  enough  to  identify 
his  fame  with  the  great  triumph  of  freedom  which  was  achieved 
through  his  agency.  But,  while  posterity  honors  his  memory,  there 
is  no  occasion  to  forget  that  he  followed,  but  did  not  lead,  the  revolu- 
tion which  abolished  slavery  in  England. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED  I 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  hooUa^mmmtkimmmmmmmmmiimt^t^alL 


^^'yfm 

ICLF  (N) 

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^^^^^^4  i%J 

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wgxY28l96B8Z 

MRY17'668  3RCD 

MAR  22  1984 

ikii.  cm.  f324  'Q^ 

OCT  06.1993 

T>r>  91  A-fiftm-i  1  'fi9                                     General  Library 
"^0)12798^2763'                            Uaiversuy^ofCalifoml. 

